Search

How can we help?

Icon

Does abandoning a tender defeat a bidder’s claim?

Under the Public Contracts Regulations 2015, bidders who are successful in establishing that a public body has breached its duties in the running of a regulated tender are entitled to recover damages. Other remedies may also be available, depending on whether a contract has been entered into or not by the public body.

But what if, after a challenge has been brought, the public body decides to abandon the tender? Does this defeat the bidder’s claim to damages?

This is the question the High Court recently had to consider in the case of Amey Highways Limited v West Sussex County Council. Amey had challenged the outcome of a highways contract which had been awarded to another bidder which scored just 0.03 more points than Amey. Amey contended that the Council had acted in breach of the Regulations in evaluating the tenders; and that had it not been for the Council’s breaches, it would have scored higher and should therefore have been awarded the contract.

After Amey’s claim had been issued, it successfully resisted an initial attempt by the Council to have the claim struck out. At that stage, concerned by the risks involved in continuing the litigation, the Council decided to abandon the procurement and re-tender the contract. Its expectation and intention was that abandoning the procurement would have the effect of bringing Amey’s claim for damages to an end.

However, the Court decided that the decision to abandon the tender did not have any effect on Amey’s claim. There was no suggestion that Amey would not have been awarded the contract, if they were correct in showing that they should have received higher marks. In addition, there was no evidence that the Council would have decided to abandon the procurement in any event, had it not been for the claim – the sole driver of the decision to abandon had been the hope that this would extinguish Amey’s claim.

Under the Public Contracts Regulations 2015, bidders who are successful in establishing that a public body has breached its duties in the running of a regulated tender are entitled to recover damages.

The court decided that the Council’s decision to abandon, although it might have had the effect of depriving a bidder of a claim which had not come into existence until after the decision, did not have any impact on a cause of action which had already accrued before the date of the decision.

Public bodies will need to consider the impact of this decision carefully when deciding how to deal with procurement challenges, and be aware that abandoning a tender will not always be a get out of jail free card: a disgruntled bidder may still have the right to claim damages, even after a procurement has been abandoned and re-started.

About this article

Disclaimer
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

About this article

Read, listen and watch our latest insights

art
  • 22 February 2024
  • Employment

Time to take the heat off menopausal women

On 22 February 2024, the EHRC released guidance and resources for employers designed to help employers understand their legal obligations in relation to supporting workers experiencing menopausal symptoms.

Pub
  • 22 February 2024
  • Employment

Talking Employment Law: What to do if you’re at risk of redundancy

In this podcast, Harry Berryman and Rebecca Dowle, members of the employment team, will talk through the steps that need to be taken for a redundancy to be fair and the range of criteria that can be used when determining which employees will be made redundant.

art
  • 21 February 2024
  • Immigration

FAQs Partner Visa UK

Discover the UK Spouse Visa: eligibility, finances, relationship criteria, and the latest updates in 2024 for a successful application.

art
  • 19 February 2024
  • Privacy and Data Protection

The role of Data Protection Officers in ensuring compliance

How many of us receive marketing calls for products and services we did not sign up for?

art
  • 12 February 2024
  • Employment

The World of Work in 2024- What Can HR Expect?

In many senses, 2024 is unlikely to be a year with radical ruptures from those that have gone before it. The significance of 2024 though, is that it is likely to build upon those megatrends impacting the world of work, which have been emerging for some time now and are only likely to strengthen as we move on in time.

art
  • 09 February 2024
  • Privacy and Data Protection

Are we suffering from cookie fatigue?

An over-indulgence in Easter treats might not be the only cookie fatigue that individuals will suffer this year according to the Information Commissioners Office (ICO).